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Published online by Cambridge University Press: 25 March 2011
This article outlines the two central theories in the ethics of secession and examines whether or under what conditions these normative theories would be satisfied in a post-invasion Iraq. I argue that the two dominant normative theories of secession focus on the secessionist group, which national self-determination theories conceive as a nation holding a right to self-determination, and just-cause theories conceive as having a remedial right to secession as a victim of injustice. The Iraq case suggests that this is a flawed way of thinking about the issue. I argue that secession is more legitimate when fair multinational arrangements are not on offer; and that the fairness requirement involves examining constitutional arrangements from the point of view of all groups.
1 See Brendan O’Leary and Khaled Salih, “The Denial, Resurrection, and Affirmation of Kurdistan,” in Brendan O’Leary, John McGarry and Khaled Salih, eds., The Future of Kurdistan in Iraq (Philadelphia: University of Pennsylvania Press, 2005), p. 16. See their footnotes for their sources.
2 Ibid., pp. 16–17.
3 See John McGarry and Brendan O’Leary, “Federation as a Method of Ethnic Conflict Regulation,” in Sid Noel, ed., From Power Sharing to Democracy: Post-Conflict Institutions in Ethnically Divided Societies (Montréal and Kingston: McGill-Queen's University Press, 2005), pp. 289–90.
4 Brendan O’Leary, Khaled Salih, and John McGarry, “Preface” in O’Leary, Salih and McGarry, eds., Future of Kurdistan in Iraq, p. xi; see also Patrick Thornberry, “The Convention on Genocide and the Protection of Minorities” in Patrick Thornberry, ed., International Law and the Rights of Minorities (Oxford: Oxford University Press, 1991), 59–85.
5 Tony Blair quoted in O’Leary, Salih and McGarry, “Preface,” p. xii.
6 Human Rights Watch, Genocide in Iraq: The Anfal Campaign against the Kurds (New York: Human Rights Watch, 1993); “Iraqi Kurds’ Story of Expulsion,” BBC News, November 3, 2001, available at http:\\news.bbc.co.uk; U.S. Agency for International Development, “Iraq's Legacy of Terror: Mass Graves” (Washington, D.C.; USAID, 2004), available at http://www.usaid.gov/iraq/pdf/iraq_mass_graves/pdf.
7 The American support for the federal principle is clear. See John McGarry, “Canadian Lessons for Iraq,” in O’Leary, McGarry and Salih, eds., Future of Kurdistan in Iraq, p. 92.
8 Peter Galbraith, “Kurdistan in a Federal Iraq,” in O’Leary, McGarry and Salih, eds., Future of Kurdistan in Iraq, p. 281.
9 Kamal Mirawdeli, “Voting for Independence: People of Kurdistan Make Their Choice!” KurdishMedia.com, February 9, 2005; available at http://www.kurdmedia.com/articles.asp?id=9997.
10 Peter Galbraith, “As Iraqis Celebrate, The Kurds Hesitate,” New York Times, February 1, 2005, p. A19.
11 The three stars in the Iraqi flag do not represent the three dominant groups in Iraq—the Shi’a, Sunni, and Kurds—but are reflective of pan-Arabism. One star represents Iraq; the other two represent Egypt and Syria.
12 Walker Connor, Ethnonationalism: The Quest for Understanding (Princeton: Princeton University Press, 1984), pp. 38–39.
13 Philpott, Daniel, “In Defense of Self-Determination,” Ethics 105,no. 2 (1995), pp.352–85CrossRefGoogle Scholar; Wellman, Christopher H., “A Defense of Secession and Political Self-Determination,” Philosophy & Public Affairs 24,no. 2 (1995), pp.142–71CrossRefGoogle Scholar; and Beran, Harry, “A Liberal Theory of Secession,” Political Studies 32 (1984), pp.21–31CrossRefGoogle Scholar.
14 The basic facts are disputed. It seems that Kurds form a majority in the Kirkuk region, but have not always formed a majority in the city. There is some (albeit disputed) evidence that Kurds were only 25 percent of the population of the city in 1949. See Ofra Bengio, “Autonomy in Kurdistan in Historical Perspective,” in O’Leary, McGarry, and Salih, eds., Future of Kurdistan in Iraq, p. 181. For this particular (low) estimate, Bengio cites Cecil Edmonds, Kurds, Turks and Arabs (Oxford: Oxford University Press, 1957), p. 435. Subsequently, the Kurds formed a much larger percentage of the population—Kurds claim that they were and are a majority—but Kirkuk was excluded from the Kurdistan region and the Baathist regime subjected the city to a rigorous Arabization campaign, involving the expulsion of some Kurds and the settlement of Arabs. Ibid., p. 181. Turkomen are also, it is claimed (by Turkey), a significant population element in the city, but that is seriously contested.
15 Kurds claim that, notwithstanding this Arabization campaign, the majority population is ethnic Kurdish.
16 For more on this subjectivist component, see Ernest Renan, “What is a Nation?” in Alfred Zimmern, ed., Modern Political Doctrines (London: Oxford University Press, 1939), pp. 186–205; Tamir, Yael, “The Enigma of Nationalism,” World Politics 47 (April 1995),pp.418–49CrossRefGoogle Scholar; David Miller, On Nationality (Oxford: Oxford University Press, 1995); and Margaret Moore, The Ethics of Nationalism (Oxford: Oxford University Press, 2001).
17 The war took the form of a classic power struggle. See David McDowell, The Kurds: A Nation Denied (London: Minority Rights Groups, 1992). Nonetheless, even McDowell does not doubt that there existed an overarching national sentiment.
18 Article 3 reads: “Iraq is a multiethnic, multireligious and multi-sect country. It is part of the Islamic world and its Arab people are part of the Arab nation,” Draft Constitution of Iraq, chap. 1, art. 3; available at news.bbc.co.uk/1/shared/bsp/hi/pdfs/24_08_05_constit.pdf.
19 Linda Colley, Britons: Forging the Nation 1707–1837 (London: Pimlico, 1992), pp. 11–54, 322–24.
20 In an International Crisis Group interview, Mjibel Shiekh Issa, a Sunni Arab member of the constitution committee, is quoted as saying: “We accept federalism for the Kurds, but only for the Kurds, as an exception.” A similar sentiment is echoed by Adnan Dulaimi, another prominent Sunni Arab leader: “We reject federalism in the central and southern area of Iraq, because it has no foundation other than sectarianism. Any honourable Iraqi should stand up against those who seek to deepen sectarianism in Iraq.” Both are quoted in International Crisis Group, “Unmaking Iraq: A Constitutional Process Gone Awry,” Report No. 19 (Amman and Brussels, September 26, 2005), p. 4; available at http://www.crisisgroup.org/home/index.cfm?id=3703&l=1.
21 See Miller, On Nationality; Moore, Ethics of Nationalism; Margalit, Avishai andRaz, Joseph, “National Self-Determination,” Journal of Philosophy 87 (1990), pp.439–61CrossRefGoogle Scholar; and Tom Hurka, “The Justification of National Partiality,” in Robert McKim and Jeff McMahan, eds., The Morality of Nationalism (New York: Oxford University Press, 1997).
22 Miller, On Nationality; Moore, Ethics of Nationalism, ch. 4.
23 See Benomar, Jamal, “Constitution-Making after Conflict: Lessons from Iraq,” Journal of Democracy 15,no. 2 (2004), pp.81–95CrossRefGoogle Scholar; and Rainer Baubock, “Paradoxes of Self-Determination and the Right to Self-Government,” IWE Working Paper Series no. 42 (Vienna: Institute for European Integration Research, January 2004).
24 Allen Buchanan, Secession: The Morality of Political Divorce from Fort Sumter to Lithuania and Quebec (Boulder, Colo.: Westview Press, 1991).
25 In Wayne Norman's elaboration (and defense) of just-cause theory, he cites five kinds of injuries to a group that are considered to give just cause. See Wayne Norman, “Ethics of Secession as the Regulation of Secessionist Politics,” in Margaret Moore, ed., National Self-Determination and Secession (Oxford: Oxford University Press, 1998), pp. 34–61.
26 This decision doesn't need to be regarded as a purely pragmatic one. It might be thought that the gravity of the situation, or the remedy sought, might necessitate a greater degree of determinacy both about the justice violation and the consequences attached to rectifying it. See Allen Buchanan, “Are Human Rights Parochial?” paper presented to the Political Philosophy Group, Queen's University, Kingston, Ontario, October 2005.
27 For an informative account of the mass graves found in Iraq by the Provisional Authority, see USAID, “Iraq's Legacy of Terror,”http://www.usaid.gov/iraq/pdf.iraq_mass_graves/pdf.
28 Buchanan, Secession, p. 109.
29 Allen Buchanan, Justice, Legitimacy and Self-Determination: Moral Foundations for International Law (Oxford: Oxford University Press, 2004), pp. 281–288. Here, Buchanan is principally concerned with the issue of legitimacy as it applies to state recognition policy, but this question of who should be the object of recognition (with all the rights and obligations that that entails) is another way of posing the question of the legitimacy of secession.
30 Ibid., pp. 281–83.
31 John Locke, “Second Treatise of Government,” in Political Writings of John Locke, ed. David Wootten (New York: Penguin, 1993), p. 348.
32 Ibid., p. 376.
33 Buchanan, Justice, Legitimacy, and Self-Determination, pp. 282–83.
34 See David Laitin, Identity in Formation: The Russian-Speaking Populations in the Near Abroad (Ithaca, N.Y.: Cornell University Press, 1998), pp. 13, 275–99.
35 For an interesting view of the relationship between justice and peace, see Melissa S. Williams, “Tolerable Liberalism,” in Avigail Eisenberg and Jeff Spinner-Halev, eds., Minorities within Minorities: Equality, Rights, and Diversity (Cambridge: Cambridge University Press, 2005), pp. 19–40.
36 I leave this open to question for the reasons sketched earlier regarding the Shi’a commitment to collective self-determination. It is unclear, given the undemocratic nature of Iraq under Saddam, and the various constraints on the elections in the postinvasion period, whether there could be more of a community of interest between Shi’a and Sunni Arabs in Iraq.
37 For an excellent discussion of federations and autonomy arrangements, see McGarry and O’Leary, “Federation as a Method of Ethnic Conflict Regulation,” in Noel, ed., From Power Sharing to Democracy, pp. 263–96.
38 A typical strategy is to have a second chamber that reflects regional interests. See Ronald L. Watts, Comparing Federal Systems, 2nd ed. (Kingston, Ont.: Institute of Intergovernmental Relations, Queen's University, 1999), pp. 83–96.
39 For a more extensive treatment of liberal constitutionalism within the national and multicultural literature, see Jacob T. Levy, “National Minorities without Nationalism,” in Alain Dieckhoff, ed., The Politics of Belonging: Nationalism, Liberalism, and Pluralism (Lexington, Mass.: Lexington Books, 2004).
40 Article 4(1) of the draft constitution reads: “Arabic and Kurdish are the two official languages for Iraq.” It goes on to describe official language status as involving “speaking, addressing, and expressing in official domains, like the parliament, Cabinet, courts, and official conferences,” rights to education of children in their mother tongue, and protection of smaller language groups, like Turkomen and Assyrian language, where they are located.
41 It might be objected that this section reifies the group identifications by referring to people on the basis of their group memberships. I do this because these group identifications are politically salient: the voting occurred on the basis of group lists and most people did not cross group affiliation lines. It does not imply homogeneity within the group, nor does it suggest that in some other institutional structure, or at some other time, different group affiliations will be more important/politically salient.
42 Article 2(2) states: “1st—Islam is the official religion of the state and is a basic source of legislation; (a) No law can be passed that contradicts the undisputed rules of Islam. (b) No law can be passed that contradicts the principles of democracy. (c) No law can be passed that contradicts the rights and basic freedoms outlined in this constitution.” The basic rights and freedoms include standard civil and political rights of equality under the law without discrimination because of sex, ethnicity, nationality, origin, color, religion, and so on, as well as equality of opportunity; rights to life, security, and freedom; equal political rights, to vote and run for office and so on. It is clear that in certain cases, these rules will conflict and the judges will be left to decide what is an undisputed rule of Islam and how the principles of freedom and equality are to be interpreted consistent with this. There is a genuine source of concern, given the possibility of a very conservative Shi’a majority in future elections to the legislative assembly (Parliament).
43 See Alisha Ryu, “Factional Rift Threatening Shi’ite Unity on Iraqi Constitution,” VOA News, September 25, 2005; available at http://www.voanews.com/english/archive/2005-09/2005-09-25-voa32.cfm.
44 One Sabean and fifteen Sunni Arab members were added to the fifty-five-member Constitutional Committee as full voting members on July 5, 2005, although one of them was assassinated on July 19. There are different versions of the process, some of which claim that the Sunni Arab representatives were not constructive. For a roundup, see International Crisis Group, “Unmaking Iraq,” p. 3, note 10.
45 The exact wording of the articles in the draft constitution is not clear. Article 109 states: “Oil and gas [are] the property of all the Iraqi people in all the regions and provinces.” But Article 110 specifies, “The federal government will administer oil and gas extracted from current fields in cooperation with the governments of the producing regions and provinces on condition that the revenues will be distributed fairly in a manner compatible with the demographic distribution all over the country.” Article 111 states, “All that is not written in the exclusive powers of the federal authorities is in the authority of the regions.” This means that any future discoveries will be under the control of the regions, and seems to suggest that the revenues are under their jurisdiction, too.
46 It is not clear that this suspicion is justified, and as I write there are news reports that a meeting of the various groups, at American insistence, is working to alter the wording of the draft constitution on this very point, and so dispel this worry (and possibly gain some Sunni Arab support).
47 See International Crisis Group, “Unmaking Iraq,” pp. 8–9.
48 Although I do not argue the point here, I think that government by a majority is preferable to government by a minority, which was, after all, the system in place under Saddam Hussein. It is also typical for previously dominant groups to resent their removal from dominant status, and to be obstructionist until they come to terms with their new status. For this reason, it is not at all unlikely for groups to oppose fair agreements: what they seek is an unfair settlement.
49 The examples are: Croatia, Slovenia, Bosnia, Macedonia, Slovakia, Czech Republic, Russia, Ukraine, Turkmenistan, Kazakhstan, Uzbekistan, Kyrgyzstan, Belarus, Latvia, Estonia, Lithuania, Armenia, Georgia, Moldova, Azerbaijan, Uzbekistan, Eritrea, and East Timor.
50 In the case of the former Yugoslavia, the Serbs, not the central government, resisted the secession, and this led to civil war—in Croatia and in Bosnia-Herzegovina. In the case of East Timor, the Indonesians (reluctantly) agreed under international pressure—but they did agree. For this point, I am grateful to conversations with John McGarry about this issue.